Sunday, June 19, 2011

Power Plays

by digby

Yesterday I wrote that the Bush administration had used John Yoo's fig leaf in contrast to the Obama admnistration's apparent tossing aside of the normal process of following the findings of the Office of legal Counsel. I was wrong about that as Greenwald reminds us in his piece this morning. The Bush administration did try to do what the Obama administration has done -- ignore the advice of the office of Legal Counsel and the Attorney General and rely on other attorneys -- but the President faced a threat of mass resignation and backed off:

In 2007, former Bush Deputy Attorney General James Comey testified to the Senate Judiciary Committee about an amazing event. Bush's then-Attorney General, Alberto Gonzales, had blocked Comey from testifying for two years -- once Democrats took over Congress, that obstruction was no longer possible -- and it quickly became apparent why Gonzales was so desperate to suppress these events.

Comey explained that, in 2004, shortly after he became Deputy AG, he reviewed the NSA eavesdropping program Bush had ordered back in 2001 and concluded it was illegal. Other top administration lawyers -- including Attorney General John Ashcroft and OLC Chief Jack Goldsmith -- agreed with Comey, and told the White House they would no longer certify the program's legality. It was then that Bush dispatched Gonzales and Andy Card to Ashcroft's hospital room to try to extract an approval from the very sick Attorney General, but, from his sickbed, Ashcroft refused to overrule Comey.

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney's top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush -- wanting to avoid that kind of scandal in an election year -- agreed to "re-fashion" the program into something those DOJ lawyers could approve (the "re-fashioned" program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

This is what happens when you don't play the blame game or look in the rear view mirror. Power, once assumed, will never be voluntarily relinquished. Read your Shakespeare. Or the Bible.

It's very difficult to understand exactly why the President was so reluctant to go to congress with this. As Greenwald points out, the GOP leadership and conservative intelligentsia are in favor of the Libyan war. It's true that it's not a monolith and that there were Democrats who might object as well, but in the end, there's little reason to believe that he couldn't get a consensus.

The best example of a similar political situation would be Kosovo, done at a time in which the president was laboring under an unprecedented cloud of scandal, having just been acquited in his impeachment trial. Clinton didn't get congressional approval for the move and didn't have the United Nations backing that Obama has on Libya. But he claimed he had tacit approval because congress had specifically appropriated money for the mission, which served the constitutional purpose under the War Powers Resolution.

In this case, the Pentagon is using existing funds so there hasn't been any kind of congressional referendum on the action, making the argument much more explicitly about executive power. However, if there were a vote, it's highly unlikely that the president wouldn't be able to get a bipartisan agreement in the congress. Why the President chose not to do it remains a mystery.